Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law
Issue 1 Yale Journal of International Law
Adjudicating the GM Food Wars: Science, Risk , and Democracy in World Trade Law
David Winickof 0
Robin Grove-White 0
0 David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White & Brian Wynne, Adjudicating the GM Food Wars: Science , Risk, and Democracy in World Trade Law, 30 Yale J. Int'l L. (2005). Available at:
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Article 3
David Winickoff
Sheila Jasanoff
Lawrence Busch
Robin Grove-White
Brian Wynnet
INTRODUCTION ..............................................................................................................................
BACKGROUND TO BIOTECHPRODUCTS....................................................................................... 86
A . The D ispute ....................................................................................................................... 86
B. The SPS Agreement, Sound Science, andDemocracyin Trade Law............................ 90
SOCIAL SCIENCE AND PRACTICAL EXPERIENCE: LESSONS ON SCIENTIFIC RISK ASSESSMENT IN THE
GMO CONTEXT ............................................................................................................................. 93
A. Risk Assessment Is Contingenton Values andPolicyJudgments................................ 94
B. Risk Assessment Depends on Political,Social,and Regulatory Contexts.................. 96
C. Public ParticipationHelps GenerateReliableRisk Assessment .................................. 99
I . Public Contributionsto GMO Risk Assessment in Europe................................. 100
2. Lack ofPublicParticipationin U.S. GMO Risk Assessment.............................. 102
D. Risk SituationsLie on a Certainty-ConsensusContinuum ............................................. 104
RE-ORIENTING THE SPS AGREEMENT: EMBEDDED LIBERALISM AND RISK ASSESSMENT ........... 106
VII.
CON CLUSION ................................................................................................................................
121
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David Winickoff is Assistant Professor of Bioethics and Society at the University of
California, Berkeley. Sheila Jasanoff is Pforzheimer Professor of Science and Technology Studies at
Harvard University's John F. Kennedy School of Government. Robin Grove-White is Professor of
Environment and Society at Lancaster University. Lawrence Busch is University Distinguished
Professor of Sociology and Director of the Institute for Food and Agricultural Standards at Michigan
State University. Brian Wynme is Professor of Science Studies at Lancaster University. We wish to
thank Celia Whitaker, Clara Brillembourg, Michael Bretholz, and others at the Yale Journal of
International Law for their outstanding editorial work; Sue Mayer and Claire Marris for their valuable
input; and Heather Butterfield for her tireless contributions to this Article.
INTRODUCTION
In August 2003, the United States, Canada, and Argentina initiated
dispute settlement procedures at the World Trade Organization (WTO) against
the European Communities (EC) for delaying approvals of genetically
modified (GM) crops within its borders.' A dispute settlement panel has
convened to settle this matter, European Communities-Measures Affecting
the Approval and Marketing of Biotech Products (Biotech Products), and the
parties began submitting written complaints in May 2004. The dispute
implicates not only technical concerns about barriers to trade but also political
questions about democratic participation in the design and operation of the
WTO.2 Its resolution will have consequences for the global development of
agricultural biotechnology, the democratic regulation of risks in world trade,
and, not least, the WTO's very legitimacy as an institution of global
governance.3
As the U.S. submission in this case makes clear, the central legal issues
in Biotech Products involve the interpretation of important provisions of the
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement),4 especially those portions concerning "scientific justification"
and "risk assessment."5 The latter is a crucial term underpinning the entire
free flow of trade in food products under the WTO's science-based
disciplines. 6 In Biotech Products, the U.S. Trade Representative has
challenged the scientific basis of European Union (EU)7 actions preventing
the import of GM crops and food products, alleging that reversals of GM
regulatory policy within the EU and its member states illustrate the EU's
departure from a fixed body of sound science and constitute "unreasonable" or
"undue delay" under the SPS Agreement. 8 The European Commission 9
focuses its argument on the safe harbor provision of SPS Article 5.7-which
permits members to impose provisional or precautionary measures under
certain circumstances-arguing that at the time of the regulatory decisions in
question, the scientific evidence was "insufficient" to perform an "adequate"
risk assessment. 10 If the dispute settlement panel decides (...truncated)